Reply Brief — La Union del Pueblo Entero, Petitioner v. Ken Paxton, Attorney General of Texas, et al.

No. 25-904

IN THE

Supreme Court of the United States

————

LA UNIÓN DEL PUEBLO ENTERO,

Petitioner,

v.

WARREN K. PAXTON, in his official capacity as

Attorney General of Texas; STATE OF TEXAS;

JANE NELSON, in her official capacity as Texas

Secretary of State; HARRIS COUNTY REPUBLICAN

PARTY; DALLAS COUNTY REPUBLICAN PARTY;

NATIONAL REPUBLICAN SENATORIAL COMMITTEE;

NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE;

SEAN TEARE, Harris County District Attorney;

REPUBLICAN NATIONAL COMMITTEE,

Respondents.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

————

MICHAEL C. KEATS

REBECCA L. MARTIN

JASON S. KANTERMAN

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

One New York Plaza

New York, New York 10004

(212) 859-8000

NINA PERALES

Counsel of Record

ANTONIO JOSEPH DELGRANDE

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

110 Broadway, Suite 300

San Antonio, Texas 78205

(210) 224-5476

nperales@maldef.org

Counsel for Petitioner

La Unión del Pueblo Entero

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner La

Unión del Pueblo Entero incorporates the statement

made in the Petition filed in this case on January 24,

2026.

RELATED PROCEEDINGS

In addition to the related proceedings described in

Petitioner’s Petition for Writ of Certiorari, filed

January 24, 2026, OCA – Greater Houston, a plaintiff

in this action before the district court and appellant

before the Fifth Circuit, filed a petition for writ of

certiorari seeking review of the Fifth Circuit’s order on

January 26, 2026 (No. 25-916).

(i)

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT .....

i

RELATED PROCEEDINGS ...............................

i

TABLE OF AUTHORITIES ................................

iv

INTRODUCTION ................................................

1

REASONS FOR GRANTING THE PETITION ....

2

I. THE PANEL MAJORITY CREATED A

SPLIT IN HOW CIRCUIT COURTS

ANALYZE PREEMPTION .......................

2

II. THE

DECISION

BELOW

IS

INCORRECT .............................................

4

A. State Law Does Not Displace Section

208 ........................................................

4

B. Section 208’s Preemptive Effect Is

Not Limited to Its Enumerated

Categories ............................................

5

C. The Presumption Against Preemption

Is Inapplicable to This Case and in

Any Event Is Overcome by the Plain

Meaning of Section 208 .......................

6

D. S.B. 1 Is Preempted Because It

Excludes “Categories” of Persons as

Assisters ...............................................

7

E. A Claimed Shared Purpose Cannot

Overcome Conflict ...............................

9

III. RESPONDENTS’ VEHICLE OBJECTIONS LACK MERIT ...............................

10

CONCLUSION ....................................................

12

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. United States,

567 U.S. 387 (2012) ...................................

2

Chamber of Com. of U.S. v. Whiting,

563 U.S. 582 (2011) ...................................

5

Churchill Downs Tech. Initiatives Co. v.

Mich. Gaming Control Bd.,

162 F.4th 631 (6th Cir. 2025) ...................

2

Cook v. Gralike,

531 U.S. 510 (2001) ...................................

6

Cutter v. Wilkinson,

544 U.S. 709 (2005) ...................................

10

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) .....................................

5

Hencely v. Fluor Corp.,

146 S. Ct. 1086 (2026) ...............................

3

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ...................................

5

La Union del Pueblo Entero v. Abbott,

151 F.4th 273 (5th Cir. 2025) ................... 11–12

Lopez v. Monterey Cnty.,

525 U.S. 266 (1999) ...................................

6

Martin v. United States,

605 U.S. 395 (2025) ...................................

3

Mi Familia Vota v. Fontes,

129 F.4th 691 (9th Cir. 2025) ...................

2

P.R. Dep’t of Consumer Affs. v. Isla

Petroleum Corp.,

485 U.S. 495 (1988) ...................................

5

v

TABLE OF AUTHORITIES—Continued

Page(s)

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ...................................

6

Voter Reference Found., LLC v. Torrez,

160 F.4th 1068 (10th Cir. 2025) ...............

2

Wyeth v. Levine,

555 U.S. 555 (2009) ...................................

7

STATUTES

52 U.S.C. § 10508 ................................... 1, 4, 7, 10

Tex. Elec. Code § 86.0105(f) (2025) ..............

8, 9

U.S. Const. amend. XV, § 2 ..........................

6

OTHER AUTHORITIES

S.B. 1 ....................................................... 1, 3, 7–11

Sup. Ct. R. 10(a) ...........................................

4

INTRODUCTION

State Respondents agree that “Section 208 was

enacted to ensure voters could receive help from

people they genuinely trust.” State Resp. 15; see also

State Resp. 2–3 (acknowledging that Section 208

grants voters “the right to receive assistance from

‘a person of their choice’—not from a person selected

for them by the government”) (quoting 52 U.S.C.

§ 10508). State Respondents also concede that S.B. 1

prevents voters from choosing their assister when

that assister is an employee of a social services

organization, such as LUPE. State Resp. 13. Thus,

although LUPE employees are well-known by LUPE

members and are “people they genuinely trust,”

S.B. 1 bars voters from choosing assistance from LUPE

employees. Id. at 15. This directly conflicts with the

protections afforded to such voters under Section 208.

None of the arguments in Respondents’ briefs save

S.B. 1 from conflict preemption. First, courts may not

decline to examine impossibility preemption. Second,

Congress is not required to enumerate all of the

categories of excluded assisters in order for Section

208 to have preemptive effect. Third, Section 208

does not authorize states to expand the categories of

excluded assisters beyond those already set out by

Congress.

The panel majority’s abandonment of impossibility

preemption puts the Fifth Circuit at odds with other

circuits. This split and the erroneous ruling below call

for an exercise of this Court’s supervisory power.

2

REASONS FOR GRANTING THE PETITION

Respondents’ arguments regarding the circuit split

avoid the issue—that the panel majority created a

new conflict preemption doctrine that splits from other

circuits.

I. THE PANEL MAJORITY CREATED A

SPLIT IN HOW CIRCUIT COURTS

ANALYZE PREEMPTION

Preemption analysis is not a “Choose Your Own

Adventure” book in which courts are free to explore

one, but ignore other, bases for conflict preemption.

See State Resp. 9 (arguing that “a court may choose”

one analytical framework). But see Arizona v. United

States, 567 U.S. 387, 399 (2012) (“[S]tate laws are

preempted when they conflict with federal law. This

includes cases where ‘compliance with both federal

and state regulations is a physical impossibility[.]’”

(citation omitted)).

The mandatory conflict preemption analysis, and

the one other circuits employ, requires a court to

examine impossibility before concluding that a statute

is not conflict preempted. If a court concludes that a

statute is conflict preempted on “purposes and objectives” grounds, it need not examine whether a statute

is impossibility preempted. See, e.g., Churchill Downs

Tech. Initiatives Co. v. Mich. Gaming Control Bd., 162

F.4th 631, 638 (6th Cir. 2025) (recognizing both

impossibility and purposes tests then concluding the

state statute was preempted on purposes grounds); see

also Voter Reference Found., LLC v. Torrez, 160 F.4th

1068, 1080 (10th Cir. 2025) (same). And a court is free

to find preemption on both grounds. See Mi Familia

Vota v. Fontes, 129 F.4th 691, 710 (9th Cir. 2025). But

if a court finds that a statute is not preempted on

3

“purposes and objectives” grounds, it must also

examine impossibility.

Hencely v. Fluor Corp., on which State Respondents

rely, reiterates: “[W]hen a regulated party cannot

comply with both federal and state directives, the

Supremacy Clause tells us the state law must yield.”

146 S. Ct. 1086, 1093 (2026) (quoting Martin v. United

States, 605 U.S. 395, 409 (2025)); see also State Resp.

11 (“[T]he Supremacy Clause requires a state law to

yield when, for example, ‘a regulated party cannot

comply with both federal and state directives.’”

(quoting Martin, 605 U.S. at 409)).

The panel majority never mentioned impossibility in

its decision and certainly did not undertake that

required analysis before concluding that S.B. 1 is not

conflict preempted. See, e.g., Pet. App. 32a (“Recall,

moreover, that this is a ‘purposes and objectives’

claim.”).

Although the panel majority purported to “start

with Section 208’s text” (Pet. App. 24a), it insisted that

“nothing compels us to read” the text to mean what it

says. Pet. App. 26a. See also id. at 25a (concluding it

was “[u]nlikely” and “absurd[]” that Section 208 means

what it says). Respondents concede that the panel

majority did “not begin[] with a side-by-side textual

comparison of Section 208 and Section 6.06[.]” State

Resp. 12. See also Repub. Resp. 23 (“The panel’s review

‘start[ed] with Section 208’s text’ . . . while considering

obstacle preemption, not impossibility preemption[.]”);

State Resp. 4 (“The panel majority . . . analyzed the

claim through the ‘purposes and objectives’ branch of

the implied conflict preemption test.”).

The panel majority then erroneously concluded that

“the district court erred by relying on the text of

4

Section 208 to find preemption of the Compensation

Provisions.” Pet. App. 26a. The opposite is true.

Comparing the text to conduct the impossibility

analysis is a key step employed by other circuits and

this Court. “[T]he same important matter” warranting

the Court’s intervention here is preemption analysis

itself. State Resp. 11 (quoting Sup. Ct. R. 10(a)).

II. THE DECISION BELOW IS INCORRECT

A. State Law Does Not Displace Section

208

State Respondents double down on the panel

majority’s erroneous conclusion that a voter’s right to

her chosen assister is defined first by the state. See,

e.g., State Resp. 23–24 (“Section 208 guarantees meaningful choice within a legislatively defined class of

eligible assistors.”) (emphasis added). In Respondents’

view, Section 208 “permit[s] States to superintend

voter assistance” by limiting who can serve as an

assister before Section 208 comes into play. State

Resp. 5; see also State Resp. 2 (asserting “[c]ompliance

with both is straightforward” because the State limits

the pool of “eligible assistor[s]” before the voter may

choose from any remaining classes); Repub. Resp. 26

(“S.B.1 is clearly within Texas’s prerogative to

‘superintend voter assistance.’”) (citation omitted).

But Congress did not say that states may limit the

right to assistance before Section 208's guarantees

apply. Instead, Congress provided disabled and lowliterate voters the right to choose their assisters, and

Congress set out the exceptions. 52 U.S.C. § 10508

(A voter has the right to “assistance by a person of the

voter’s choice,” subject to four enumerated exceptions:

“the voter’s employer or agent of that employer or

officer or agent of the voter’s union.”).

5

In replacing Congress’s judgment with its own,

the panel majority abandoned “‘the principle that it is

Congress rather than the courts that pre-empts state

law.’” Chamber of Com. of U.S. v. Whiting, 563 U.S. 582,

607 (2011) (quoting Gade v. Nat’l Solid Wastes Mgmt.

Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring

in part and concurring in the judgment)).

B. Section 208’s Preemptive Effect Is Not

Limited to Its Enumerated Categories

State Respondents argue that by granting the right

to choose one’s assister, and naming four categories of

excluded assisters (employers, union officers and their

agents), Congress invited states to designate as many

additional categories of excluded assisters as they

want. In other words, states can ban unlimited

additional categories of assisters, as long as Congress

did not expressly permit them to assist. See State

Resp. 3 (“Section 208 says nothing about whether

assistors may be compensated.”).

State Respondents rely on Puerto Rico Department

of Consumer Affairs v. Isla Petroleum Corp., 485 U.S.

495 (1988) (State Resp. 12), but that case supports

Petitioner’s argument: the Court explains that “[w]hile we

have frequently said that pre-emption analysis

requires ascertaining congressional intent, we have

never meant that to signify congressional intent in a

vacuum, unrelated to the giving of meaning to an

enacted statutory text.” P.R. Dep’t of Consumer Affs.,

485 U.S. at 501 (internal citation omitted) (citing

La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369

(1986)).

In Section 208, Congress chose to define the right in

terms of the voter’s choice.

And by excluding

employers, union officials and their agents from the

6

pool of assisters from which a voter has the right to

choose, Congress struck a balance between protecting

and empowering voters. States may not disturb that

balance, and Respondents’ approach impermissibly

collapses implied preemption into express preemption.

C. The Presumption Against Preemption

Is Inapplicable to This Case and in Any

Event Is Overcome by the Plain

Meaning of Section 208

State Respondents incorrectly assert that the

presumption against preemption applies here. State

Resp. 19. Regulation of federal elections does not fall

within the states’ “historic police powers” because

states derive their authority to regulate federal

elections from a delegation of power by the U.S.

Constitution. Cook v. Gralike, 531 U.S. 510, 522–23

(2001). State Respondents concede that “Congress has

broad authority to do so under the Reconstruction

Amendments.” See State Resp. 21 n.* (citing U.S.

Const. amend. XV, § 2). As the dissent below correctly

observed, the Voting Rights Act “authorizes federal

intrusion into sensitive areas of state and local policy

making[.]” Pet. App. 56a (quoting Lopez v. Monterey

Cnty., 525 U.S. 266, 282 (1999)).

Respondents pluck from Shelby the assertion that

“the ‘power to regulate elections’ is one power that the

‘Framers of the Constitution intended the States to

keep for themselves,’” (State Resp. 12 (quoting Shelby

Cnty. v. Holder, 570 U.S. 529, 543 (2013)); see also

Repub. Resp. 18) but then ignore the next sentence:

“Of course, the Federal Government retains significant

control over federal elections.” Shelby Cnty., 570 U.S.

at 543.

7

Even if the presumption applied here, and it does

not, Section 208 demonstrates “the clear and manifest

purpose of Congress,” Wyeth v. Levine, 555 U.S. 555,

565 (2009), by creating only four exceptions to a voter’s

right to choose an assister. 52 U.S.C. § 10508. State

Respondents misread Wyeth when they assert that

Congress must provide “affirmative textual evidence”

to preempt state law. State Resp. 19. Wyeth says no

such thing, and a requirement that Congress include

preemptive text, as explained above, improperly

collapses implied preemption into express preemption.

D. S.B. 1 Is Preempted Because It Excludes

“Categories” of Persons as Assisters

State Respondents take two wrong approaches to

S.B. 1’s obvious conflict with Section 208. The first is

denial. See, e.g., State Resp. 17 (asserting that S.B. 1

“does not exclude anyone from the pool of eligible

assistors”); id. at 13 (“Section 6.06 says nothing about

whom a voter may choose.”).

The second wrong approach is State Respondents’

attempt to draw a distinction between S.B. 1 and

Section 208 by claiming that S.B. 1 regulates

“transactions” but not “persons[.]” See State Resp. 10

(“Section 208 and Section 6.06 . . . regulate different

things.”); State Resp. 18 (arguing that S.B. 1 “restricts

transactions”).

State Respondents frankly admit that “the trustedperson concern is exactly what animates the compensation ban” that bars LUPE employees from assisting.

State Resp. 16. State Respondents’ characterization of

LUPE employees as a category of people gives away

the store.

Section 208’s four excluded categories are just

as identity- and transaction-based as S.B. 1. All of

8

Section 208’s excluded categories—employers, union

officials and their agents—are paid, and “compensation”

defines their interaction with the voter. On the

flip side, the assisters excluded by S.B. 1 have a

“relationship to the voter.” State Resp. 22.1

State Respondents have no convincing argument

that S.B. 1 is not a “person-based restriction[]” when

S.B. 1 prohibits voters from choosing assistance from

LUPE employees they know and trust. State Resp. 7.2

S.B. 1’s assistance restriction is far broader than

“simply prevent[ing voters] from compensating th[eir]

assistors,” State Resp. 12, because it bans assistance

from employees of social services agencies, see id. at 13

(claiming that S.B. 1 permits a voter to choose an

assister as long as “no compensation changes hands”);

id. at 22 (describing compensation as “conduct-based”

even when the voter does not pay the assister). S.B. 1

bars voters from choosing assisters whose job duties

include providing voter assistance, unless the assister

is “an attendant or caregiver previously known to

the voter.” Tex. Elec. Code § 86.0105(f) (2025). S.B. 1’s

broad language prevents voters not only from choosing

assisters they know and trust at LUPE, but also any

other individual whose job includes helping others

with daily tasks, including a hospital social worker,

1

For this same reason, State Respondents are unable to escape

the expressio unius canon which prohibited the panel majority

from implying additional exceptions. See State Resp. at 5 (conceding that an “associated series [] triggers the negativeimplication inference”).

2

Republican Respondents’ claim that a LUPE employee “need

only go off the clock for the time it takes to help the voter fill out

the ballot” assumes, without evidence, that LUPE’s employees

are hourly, not salaried, workers, and have the ability to “go off

the clock” in the middle of their work day. Repub. Resp. 14.

9

employee of a homeless shelter, or an administrative

assistant at City Hall who walks next door to the

polling place on Election Day to assist voters. Not

every voter who needs assistance has “an attendant or

caregiver previously known to the voter;” and it is

routine for voters who need help to turn to social

services employees for assistance. Id.

State Respondents’ frequent, misapplied labels

cannot save their argument. State Respondents

variously describe the assisters prohibited under S.B.

1 as people paid by the voter (LUPE assisters are not),

strangers to the voter (LUPE assisters are not) and

“ballot harvesters” (LUPE assisters are not). See State

Resp. 2 (arguing S.B. 1 ensures that “no compensation

changes hands”); id. at 16 (“What the statute targets

is a paid stranger.”); id. at 22 (asserting S.B. 1 is meant

to target “ballot harvesters”). LUPE assisters, and

many other social service workers are exactly the

known and trusted assisters that Congress intended

to make available to voters.

E. A Claimed Shared Purpose Cannot

Overcome Conflict

Like the panel majority’s erroneous ruling, State

Respondents argue that S.B. 1 is not conflict

preempted because it “operates in conjunction with

Congress’s purposes and objectives in Section 208[.]”

State Resp. 13–14.

But this Court has never

authorized collapsing impossibility conflict preemption

into the “purposes and objectives” test. Also, S.B. 1

poses an obstacle to Congress achieving its purposes

and objectives.

A claimed shared purpose does not afford states

unlimited power to regulate who may assist. Unlike

10

existing Texas statutes that prohibit voter coercion

and fraud, S.B. 1 sweeps in and targets the neighbor’s

son paid $20 as a thank you, the friend treated to lunch

in exchange for help filling out a ballot, the City Hall

secretary who assists voters, and the employee of a

social services organization like LUPE.

Respondents’ overly-expansive interpretation of

purposes and objectives preemption replaces the

inquiry into congressional intent with a state veto

power over federal policy. In Section 208, Congress

excluded four categories of assisters and otherwise

gave voters the right to choose who may assist.

52 U.S.C. § 10508. And although State Respondents

assert that reading the plain language of Section 208

is “maximalist,” (State Resp. 16), it is State Respondents who take a maximalist approach when they claim

no limits on their ability to regulate who may serve as

an assister, as long as the state claims that the

restriction “operates in harmony” with federal law. Id.

III. RESPONDENTS’ VEHICLE OBJECTIONS

LACK MERIT

Respondents’ unsuccessful arguments in the court

below fare no better as repackaged “vehicle” concerns.

First, the panel majority exercised jurisdiction

over the case and decided the merits issues on appeal

here; the case is a good vehicle whether or not the

panel took up the question of private right of action.

See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005) (“Because these defensive pleas were not

addressed by the Court of Appeals, and mindful that

we are a court of review, not of first view, we do not

consider them here.”).

Second, the panel majority concluded that LUPE

has standing. S.B. 1 directly regulates LUPE’s

11

activities and bars LUPE’s members from voting with

the assistance of their chosen helpers. See, e.g., Pet.

App. 169a (citing testimony that LUPE members could

no longer vote with their chosen assisters who were

LUPE staff).

Finally, Respondents try but fail to sow confusion

about the parties in this case. State Respondents

suggest that they are not proper parties, see State

Resp. 28, but ignore the fact that the case involves

state and local defendants. See Pet. App. 7a–8a

(describing defendants who are district attorneys and

local election officials).

Respondent Sean Teare, the Harris County District

Attorney, indicates that he “does not take any position

on the question presented” in the Petition. Teare Resp.

6. Nevertheless, Mr. Teare misleadingly asserts that

the claims of “the Plaintiffs, including Petitioner . . .

against the HCDAO led to portions of the district

court’s order awarding relief against the HCDAO,” id.,

and that “various of the Plaintiffs, including Petitioner,

amended their complaints to include as defendants the

district attorneys of several major urban counties in

Texas, including the HCDAO,” id. at 2. Mr. Teare is

incorrect. LUPE did not name Mr. Teare or his

predecessor, Kim Ogg, in its complaint, and has never

maintained any claims against him in his official

capacity or otherwise. Accordingly, when Mr. Teare

asserts that he challenged “Plaintiffs’ lack of standing

to bring . . . claims against the HCDAO,” at most he

is describing arguments he raised against different

plaintiffs in the case below. Those parties, and their

specific facts, are not before the Court on this Petition.

In any event, as Mr. Teare concedes, the Fifth Circuit

concluded that LUPE had standing to challenge

Section 6.06 of S.B. 1. See id. at 6 (citing La Union del

12

Pueblo Entero v. Abbott, 151 F.4th 273, 282 (5th Cir.

2025)).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MICHAEL C. KEATS

REBECCA L. MARTIN

JASON S. KANTERMAN

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

One New York Plaza

New York, New York 10004

(212) 859-8000

NINA PERALES

Counsel of Record

ANTONIO JOSEPH DELGRANDE

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

110 Broadway, Suite 300

San Antonio, Texas 78205

(210) 224-5476

nperales@maldef.org

Counsel for Petitioner

La Unión del Pueblo Entero

June 23, 2026